School District Number One v. Bishop

Irvine, C. The history of this case has been somewhat eventful, and its result is to present to us now for review questions of practice rather than questions of substantive law. The action was begun by the school district to recover damages upon a bond alleged to have been executed by Henry O. Bishop as principal and the other defendants as sureties, conditioned for the faithful performance of a contract whereby Bishop undertook to construct for the school district a certain schoolhouse, it being alleged that the contract provided that Bishop should assume all risk of losses by fire, water, or accident during the progress of the work, and deliver to the school district the building complete at. a time specified. The breach alleged was that while the-work was in progress a violent wind-storm occurred, destroying the building, and that Bishop had failed and refused to replace it, to the plaintiff’s damage. An answer and a reply were filed presenting a number of issues for trial. In June, 1888, an order was made referring the case to a referee to hear and determine the facts and report his findings cm the first day of the following term of court. It does not appear whether or not this order of reference-was made by consent of the parties, but no exception was taken thereto; so the question is immaterial so far as the-validity of the order is concerned. Subsequently an order was made extending the time for report. This order was made October 16, 1888, and directed the referee to report on the first day of the next term of court. The record presents some question, as to whether the report was filed within time. It was filed December 27, 1888, and the record being silent as to the dates when the different terms were held, it must be presumed that the report was filed — 852 — within time. The result of the report so filed was to find due to the plaintiff from all the defendants except Henrietta Bishop the sum of $4,160.49, and to discharge the defendant Henrietta Bishop. A motion was filed to confirm this report on the part of the plaintiff, while the deT fendants filed exceptions thereto, and a motion to set it aside and for a new trial. The latter motion was sustained February 16, 1889, the plaintiff excepting to the court’s ruling. The case was then continued from term to term for different reasons until October, 1891. In that month there was filed a stipulation of counsel agreeing to a continuance of the cause over the November, 1891, term; but an order appears at that term reciting that the cause came on to be heard and that it was dismissed at plaintiff’s costs over an exception by the plaintiff to that ruling. Six days later a motion was filed by the plaintiff to reinstate the cause; but no entry was made at that term of any order on the motion to reinstate. In February, 1892, another judge presiding, the motion to reinstate was called up, whereupon the court on motion of two of the defendants entered a nunc pro tunc order, finding that on the 5th day of December, 1891, the motion to reinstate had by the former judge been overruled and that the plaintiff had then excepted to that ruling, and directing the clerk to reform the record accordingly. Bills of exceptions were settled preserving the evidence on the hearing of February, 1892; but there is no bill of exceptions disclosing the evidence or proceedings’ of the November term, 1891. On this record the plaintiff prosecutes proceedings in error, his petition containing a number of assignments of error, which may, however, be reduced to three general assignments: First, the setting aside of the referee’s report; second, the dismissal of the case in December, 1891; third, the making of the order of February, 1892, nunc pro tunc, showing the overruling of the motion to reinstate in December, 1891. An examination of the Code of Civil Procedure, and of — 853 — the decisions of this court thereunder, shows that where a case is referred, the findings of fact by the referee stand in the same position as the verdict of a jury, and may be confirmed and judgment entered thereon, or may be set aside on a motion for a new trial in conformity with the practice in other cases. (Code of Civil Procedure, art. 4 and art. 6; Simpson v. Gregg, 5 Neb., 237; Light v. Kennard, 11 Neb., 129 ; Brown v. O’Brien, 4 Neb., 195.) Therefore, in considering whether or not there was error in the action of the district court in setting aside the referee’s report, we should, proceed in the same manner as if there had been a trial by jury and verdict similar to the report of the referee, and a motion for a new trial sustained. While the limitations upon the power of this court to review the action of a district court in granting a new trial have not yet been very distinctly defined, the adjudications have gone far enough to-establish these rules : That in granting a new trial a district court has a large discretionary power; it is not confined to-a strict consideration of the specific grounds urged in the motion, but may, for manifest error in the proceedings, of its own motion, in the interest of a proper administration of justice, set aside a verdict and allow a new trial; and, therefore, where a new trial has been allowed, a much stronger showing must be made against the ruling of the court to procure a reversal, than where a new trial has been denied. The action of the court will not be reviewed except for abuse of discretion. (Missouri P. R. Co. v. Hays, 15 Neb., 224; Bigler v. Baker, 40 Neb., 325 ; Weber v. Kirkendall,. 44 Neb., 766.) Examining this record with a view to the rule so established, and not merely upon a technical consideration of the reasons assigned in the motion for a new trial, we find that the sureties on the building bond averred in their answer that after the building had been blown down the plaintiff had permitted strangers to remove and convert to their own use building material to the value of $2,500; that they had signed the bond upon condition that — 854 — before its delivery one Mullalley should sign the same, and that this condition was known to the plaintiff, and that after the execution of the bond material changes had been made in the building contract, the performance of which it had been given to secure, without the consent of the sureties. The last defense is averred in general language, but is probably sufficiently pleaded unless attacked by motion, which was not done. On none of these issues did the referee niake any finding, and there was no general finding. It has been said that where the referee fails to find certain issues the proper practice is to refer the case back with directions to make a finding. (State v. Graham, 23 Neb., 68.) But this was" said in an original action in the nature of quo warranto in this court, and not in a case like this — an ordinary action at law. It has also, we believe, been the practice, where an equity case has been referred and the findings of the referee vacated, for the court itself to make findings on the evidence reported by the referee; and this practice we do not wish to be understood as disapproving. The case before us is, however, an action at law where a jury trial is demandable of right. It could not be referred except by consent of the parties (Code of Civil Procedure, secs. 298, 299), and the record showing no objection, consent is presumed. (Hosford v. Stone, 6 Neb., 378.) But the case being one not referable except by consent, if the court did not find the report such as to warrant the entry of judgment thereon, we do not think it was any abuse of discretion to set it aside absolutely and award a new trial, although we would not say that that was the only proper practice. It is stated in one of the briefs that the report was in fact set aside because the bill of exceptions was not complete. This statement is not, however, borne out by the record, which shows that it was set aside “ for the reasons stated ” in the motion, which included most of the causes authorized for a motion for a new trial. We cannot, therefore, from the record, tell upon which one the — 855 — court proceeded, and having found one reason justifying its action it will not be disturbed. We are thus brought to the proceedings of 1891 and 1892. It is strenuously argued that the nunc pro tunc ■order was erroneous, not because it was not entered in accordance with the facts, but because it was made on oral testimony alone, without any support; from the judge’s minutes, the files, or other entries of record ; and cases are cited which hold that a nunc pro tunc order for the purpose of supplying the record must be based on some entry and cannot be made to depend upon oral testimony. We think that the weight of authority is now contrary to this view; and' that the action of the court was fully warranted by our own decisions. In Garrison v. People, 6 Neb., 274, a criminal case, the record failed to show the finding of the indictment, and at a subsequent term of the court a nunc pro tunc order was entered supplying this defect. This action was sustained, the court holding that a court of ¡record has authority to make an entry as of the date when it should have been made, to conform to the facts; and that <£this may be done upon the judge’s notes or any other satisfactory evidence.” In Sullivan Savings Institution v. Clark, 12 Neb., 578, it was held that the judge’s minutes are prima facie evidence of the proceedings, but may be shown to .differ from the judgment actually rendered. Brownlee v. Davidson, 28 Neb., 785, and Hoagland v. Way, 35 Neb., 387, also assert the full power of the court to amend its record to conform to the facts. Of the propriety of this rule we have not the slightest doubt. The record when made up imports absolute verity. In collateral pro-’ ■ceedings and for purposes of review in this court, it is unimpeachable. This is an elementary rule which we have had frequent occasion to enforce. Its existence is of itself a sufficient reason for sustaining the power of the court making the record to see that it becomes in fact what it is in law — an absolutely truthful record of what in fact oc — 856 — curred; and while a court should on application to correct the record proceed with caution for the purpose of insuring verity, it is not confined to any one class of evidence, but, in the language of the first case cited, may proceed upon any satisfactory evidence. There was, therefore, no error in making the wwna pro tunc order. Nor can we say that there was error in the judgment of dismissal or in refusing to reinstate the case thereafter. We do not know from the record why the court took this course. It is true there was a stipulation for a continuance, but this stipulation may have been waived. It may have been vacated for good cause. (McClure v. Heirs of Sheeh, 4 S. W. Rep. [Tex.], 552.) We have no bill of exceptions showing either the existence or absence of such cause. It is true that there is in the record a bill of exceptions embodying the evidence on the motion to reinstate when called up in February, 1892; but this motion was then properly overruled by the judge on ascertaining that the same motion had been passed upon at a former term — in other words, that it was no longer pending. We are not even prepared to say that the rights of other litigants may not justify a court in summarily dismissing a case for want of prosecution, in spite of such a stipulation, where it has stood term after term upon the docket without progressive action and an impediment to other business of the court. But we do not hold that this was such a case. We sustain the judgment of dismissal upon the ground that the record does not disclose the evidence upon which it was based, and error does not appear. Judgment affirmed. Ragan, C., not sitting.